Naslov
Resolving Commercial Disputes with an International Element – Solutions from the People’s Republic of China (PRC) and the Republic of Croatia (with special emphasis on court mediation proceedings)

Autori
Chan, C.H., Peter ; Jelinić, Zvonimir

Izvornik
Croatian arbitration yearbook (1330-6219) 19 (2012); 239-279

Vrsta, podvrsta i kategorija rada
Radovi u časopisima, članak, znanstveni

Ključne riječi
dispute resolution; arbitration; mediation; judicial proceedings; recognition and enforcement of foreign awards and judgments; settlement

Sažetak
This paper is the result of an intense discussion between the authors about ways of resolving cross border disputes that may arise between Chinese and Croatian enterprises while performing their business activities. As of late, PRC and Croatia are starting to deepen their political and economic ties. It is reasonable to envisage that this development will result in increasing number of contractual relations between Chinese and Croatian entities which perform commercial activities, primarily related to the sale of goods. However, doing business between the enterprises coming from different civilizations is always affected by the fact that different societies have divergent political and social backgrounds, different legal systems and consequently, different ways of and preferences for dispute resolution arising from commercial contracts. Moreover, in most of the cases involving smaller claims, as the authors foresee, no written contract would exist, but rather a contract would be concluded when acceptance of the offer becomes effective. What are the most effective options for contracting parties if a dispute related to the sale, delivery and payment of goods arises? What resolution mechanisms could be used and how would they function in such different societies? For example, arbitration and mediation may take different shape or form in jurisdictions that approach ADR in different manners. Same could be said with court proceedings and the way courts operate and adjudicate. Legal culture and practical circumstances impact significantly on how cases are dealt with in a particular court system. The fact that some Croatian Commercial Courts are facing huge backlogs could be decisive for a Chinese seller in considering alternative ways of dispute resolution, instead of taking the Croatian buyer to court. On the other hand, Croatian entrepreneurs have to be aware that court mediation is sometimes unavoidable if they seek to litigate in China. Court mediation has acquired a function much wider than that of dispute resolution. The policy reasons propelling its rise will be examined in depth. While court mediation is said to be voluntary under the law, coerced mediated is prevalent in practice. Croatian enterprises must therefore be prepared to be flexible in its dispute resolution strategy when brining a lawsuit in China. The purpose of this paper is to highlight some of the main conceptual differences between the two legal systems as well to provide the business and legal communities with some details on instituting and conducting commercial dispute resolution proceedings in a fast and efficient way. In a given sense, because of its academic approach, this paper differs from international studies and reports which provide rankings on the ease of doing business with respect to certain areas of the life of a business (enforcing contracts, resolving insolvency or similar). A special emphasis is placed on mediation, which both authors recognize as a cost-effective and quick way of resolving disputes while preserving the amicable and sustainable economic ties between entrepreneurs from these two distant countries.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA